The High Court made no order as to costs after an immigration judicial review became moot when the Minister for Justice and Equality revoked a deportation order and granted an EU residence card to the first applicant.
The applicants were the first applicant, a Mauritian national; the second applicant, a Polish citizen; and their child. The first applicant had entered Ireland in 2007 on student permission, which was cancelled after he stopped attending his course. He remained in the State after undertaking to leave, and a deportation order was made in 2011.
After his arrest in June 2018 and detention in Cork Prison, applications were made to revoke the deportation order, secure an EU residence card and obtain permission under the CJEU’s Ruiz Zambrano decision. The applicants then brought judicial review proceedings and sought an injunction. On 2 July 2018, Keane J. granted partial leave for declaratory relief but refused the injunction. The first applicant was released later that week, and the Minister undertook not to deport him until the revocation application had been decided.
The applicants later submitted DNA evidence confirming the first applicant was the child’s father. The Department prepared a recommendation that he receive permission as a permitted family member, subject to revocation of the deportation order. The order was revoked on 9 October 2018, and an EU residence card was granted on 6 December 2018.
As the parties agreed the proceedings were moot, the remaining issue before Mr Justice Richard Humphreys was costs. He concluded that the case became fully moot only when the EU residence permission was granted. Although that decision acknowledged the applicants’ EU free-movement rights to a limited extent, he said the grant resulted from the application being made and decided in due course, rather than from the judicial review.
The judge also noted that the family-based application had not been made until the first applicant was in custody, leaving the Minister without a reasonable time for enquiries. As to the injunction, it had already been refused and that decision had not been challenged; the undertaking therefore did not amount to a concession on that issue.
Applying Supreme Court guidance on costs in moot proceedings, the High Court ordered that there be no order as to costs. It did not decide the underlying immigration applications on their merits in this costs judgment.